1 2025:CGHC:57747-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 888 of 2024 1 - Nanu @ Pradeep Yadav S/o Sudarshan Yadav Aged About 22 Years R/o Saheb Ram Colony B-Block No. 1516, P.S. - Chakradhar Nagar, District : Raigarh, Chhattisgarh 2 - Bantu @ Rajendra S/o Late Nandlal Yadav Aged About 25 Years R/o Kachhi Kholi, Bhaisa Kotha, Hemu Colony Chowk P.S. - Chakradhar Nagar, District : Raigarh, Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through - Station House O5cer P.S.- Chakradhar Nagar, District : Raigarh, Chhattisgarh ... Respondent(s) (Cause Title Taken from Case Information System) For Appellant(s) : Mr. Nitesh Sahu, Advocate. For Respondent(s) : Mr. S.S.Baghel, Deputy Government Advocate. Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 27/11/2025 1 This criminal appeal is directed against the judgment of conviction and order of sentence dated 29.01.2024 passed by the learned Additional Sessions Judge, Fast Track Special Court (POCSO), Raigarh, District Raigarh, in Special Criminal Case under the POCSO Act No. 46/2022 whereby the appellants have been convicted and sentenced as under: 2 Conviction under Section Rigorous Imprisonment Fine Default Sentence (R.I.) Appellant-Nanu @ Pradeep Yadav 323 of the Indian Penal Code (for short, the IPC) 4 months Rs. 1000/- 2 months 4(2) of the Protection of Children from Sexual O?ences Act, (for short, the POCSO Act) (under the provisions of Section 42 of the POCSO Act) 20 years Rs. 5000/- 6 months Appellant-Bantu @ Rajendra 323 of the IPC 4 months Rs. 1000/- 2 months 4(2) read with Section 17 of the POCSO Act (under the provisions of Section 42 of the POCSO Act) 20years Rs. 5000/- 6 months 2 A mention was made by the learned counsel for the appellants in the morning today itself that the father of the appellant No. 1-Nanu @ Pradeep Yadav, has died on 19.11.2005 at Raigarh and his last rituals are required to be performed. As such, an interim application being IA No. 3, for grant of ad-interim bail application has been moved which is required to be heard urgently. 3 In view of the above facts situation, this Court directed the Registry to list the case today itself alongwith IA No. 2, application for suspension of sentence and grant of bail to the appellants, which is pending alongwith the present appeal. 4 It further transpires from the record that the present appeal was Aled by Mr. Sandeep Yadav, learned counsel as the appellants had sought assistance from the High Court Legal Aid Committee. However, since they have engaged their own counsel, namely Mr. Nitesh Sahu, and as the appellants are in jail since 20.07.2022, with the consent of learned counsel appearing for the parties, the matter is heard Anally. 3 5 The appellant- Nanu @ Pradeep Yadav was charged for the o?ence punishable under Section 376(3), 323 of the IPC and Section 4 (2) of the POCSO Act alleging that on 19.07.2022 at 6.00 p.m., at the place of Chakradhar Nagar, Police Station, District-Raigarh, he raped a girl below 16 years of age. He committed rape on a minor victim, formed a common intention with the co-accused Bantu @ Rajendra Yadav to assault the said victim and voluntarily caused hurt by assaulting the victim and committed penetrative sexual assault on a minor victim below 16 years of age. 6 The appellant No. 2-Bantu @ Rajendra was charged for the o?ences punishable under Section 376 (3) read with section 109, 323 of the IPC and Section 4(2)/17 of the POCSO Act, alleging that on the said date, time and place, he intentionally aided and abetted the appellant Nanu @ Pradeep Yadav in committing the crime of rape on a minor victim below the age of 16 years and by forming a common intention with the appellant Nanu @ Pradeep Yadav to assault the victim, and had voluntarily caused hurt by assaulting the victim and he intentionally aided and abetted the appellant Nanu @ Pradeep Yadav in committing penetrative sexual assault on the said minor victim. 7 The case of the prosecution, in brief, is that on 19.07.2022, during the patrolling, Sub-Inspector Santara Chauhan of Chakradharnagar Police Station received oral information that some boys had committed a wrong act with a minor girl of Saheb Ram Colony, whose family members had taken her to the District Hospital, Raigarh. Then, to verify the information, Sub-Inspector Santara Chauhan reached the hospital and after questioning the victim (PW-1) and her family members, statements were taken, in which it was found that on 19.07.2022 at 6.00 pm, the victim was alone at home, her parents and elder sister had gone out, she was 4 sleeping in the room, when she heard a sound from outside. When she came, she opened the door and came out, two boys suddenly came out from the bathroom of the house, both the boys had scarves tied around their mouths, both of them hit the victim, one boy was fat and pressed the victim's neck, 'A' was written in English on his hands and palms and the other boy was thin who removed the victim's clothes and did wrong things with her, after that both of them ran away. The fat boy looked like Bantu of the locality and the thin boy looked like Nanu. When the victim's sister-in-law (Bhabhi) arrived after some time, she narrated the entire incident, then called her mother and sister and she was brought to the Hospital through 108 Ambulance for treatment. 8 On the aforesaid information, prima facie it was found that a crime had been committed, hence on the spot itself Dehati Nalishi (Exhibit P-2) was registered and taken into investigation and in Police Station Chakradhar Nagar, Raigarh, Crime No. 393/2022 under Section 376, 323/34 of IPC and Section 4 of POCSO Act, an FIR (Exhibit P/16) was registered and investigation proceedings commenced. During the investigation, the statement of the victim, her parents and sister was recorded and after obtaining consent from the victim and her mother, the private parts of the victim were examined and the appellant Nanu @ Pradeep Yadav was medically examined and the accused were arrested and an arrest memo (Exhibit P/17 and P/18) were prepared. During the investigation, the attested copy of the Dakhil Kharij Register relating to the age of the victim (Exhibit P/11C), was seized as per the seizure memo (Exhibit P/10). The statement of the victim was recorded in the Magistrate's Court under Section 164 Cr.P.C and after the entire investigation process, the charge sheet was presented in the court for trial under Section 376, 323/34 of the IPC and Section 4 of the POCSO Act. 5 9 Charges were framed under the aforementioned Sections of the IPC and the POCSO Act against the appellants. They abjured the guilt and prayed for trial. 10 To prove the o?ence alleged against the appellants, the prosecution examined the witnesses namely; the victim (PW-1), mother of the victim (PW-2), sister of the victim (PW-3), Head Mistress (PW-4), father of the victim (PW-5), Dr. Sushma Ekka (PW-6) and Smt. Santara Chauhan (PW-7) and exhibited as many as 29 exhibits. 11 On examination of the appellants/accused under Section 313 Cr.P.C, they denied most of the questions and in respect of some questions, they expressed their ignorance. They stated that they were innocent and that they had been falsely implicated because of enmity. 12 The learned trial Judge, after considering the evidence on record, convicted and sentenced the appellant/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellants/convict. 13 Mr. Nitesh Sahu, learned counsel for the appellants submits that the entire case is false and fabricated. The appellants are cousins. There is no dispute that the victim was a minor on the date of incident, however, no such incident of rape or assault was committed by the appellants. The learned trial Court has heavily relied on the deposition of the victim when there is no other supportive or corroborative evidence to hold that the victim was subjected to any sexual assault. There are omissions and contradictions in the statement of the prosecution witnesses and most of the witnesses are near relatives of the victim. There was no injury found on the body of the victim. The victim had stated that immediately after the incident, her sister-in-law arrived at the place of occurrence, however, 6 the said sister-in-law was not included as witness by the prosecution neither her statement has been recorded. The occurrence of the incident itself is highly doubtful and improbable and as such, the appellants may be acquitted of the charges. 14 On the other hand, Mr.S.S.Baghel, learned Deputy Government Advocate appearing for the State/respondent submits that the learned trial Court has rightly arrived at a Anding with regard to the guilt of the appellants and the learned trial Court was fully justiAed in convicting and sentencing the appellants for the o?ences in question. The judgment is based on evidence available on record and as such, the same does not warrant any interference and the appeal deserves to be dismissed. 15 We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 16 None has appeared either on behalf of the victim (PW-1) or her father (PW-5) despite service of notice pursuant to the order dated 19.06.2024, to oppose this appeal Aled by the appellants. 17 It is an admitted position that both the appellants are near relatives being cousin. It is also an admitted position that the victim was a minor on the date of incident as she was studying in Class 8th. As such, the only question to be considered is as to whether the incident as alleged by the victim had occurred and whether it was the appellants who had committed the o?ence in question? 18 It is an admitted position in this case that when the alleged incident occurred, there was no other person in the house except the victim (PW- 1) and as such, her statement is of utmost importance. 7 19 In her deposition before the Court, the victim (PW-1) has deposed that on the date of incident, she was alone in her house and was sleeping. She stated that two boys entered her house who had covered their face with scarf out of which the appellant-Pradeep committed rape upon her and appellant-Bantu strangulated her neck. In cross examination, she states that there are about 4-5 hundred families residing in the area and most of them are of labour class. All the houses constructed in the colony were of same size and design and it was correct to say that if the door is closed, then there is no other way to enter into the room and when she was sleeping, she had bolted the door from inside and at that time, there was no one in the room. When she heard sound from outside, she opened the door. She had further deposed that she had sustained injuries on her neck which was clariAed later that there was bruise marks and that there was bleeding from internal parts after commission of rape. She further stated that she had seen the appellants coming out of the bathroom of her house covering their face with scarf. The victim further stated that appellant-Pradeep and Umesh Yadav belonged to the same family and earlier to this incident, she had lodged a report against Umesh Yadav and the said case was also pending trial and after the said incident, she was not in talking terms with the appellant-Pradeep Yadav. She has also admitted that the wife of appellant-Bantu had lodged an FIR against her brother with regard to eve teasing which is pending trial in the Magistrate’s Court, Raigarh. She has further stated that there is one stair case in the building, which is used for going upstairs and coming downstairs and from the windows, it can be seen as to who is coming and going. She has further stated that she was not aware as to at what time her sister-in-law, her mother and sister arrived after the incident, though she claims to be a student of Class 8th. She has further admitted 8 that no clothes were seized by the police. She further admitted that no identiAcation proceedings of the appellants nor their voice was conducted by the police. 20 The mother of the victim (PW-2) stated that on the date of incident, she was not at home and had gone for exorcism. When she reached home at 6 – 6:30, she found the victim lying on the cot and was crying and when enquired, she did not state anything. She was declared hostile by the prosecution. She has denied the prosecution story and stated that she had neither given consent for examination of the private part of the victim nor any vaginal slide was seized by the police in her presence. The elder sister of the victim (PW-3) has also made deposition in similar manner and she has been declared hostile. The father of the victim (PW-5) has also turned hostile and not supported the prosecution case. 21 Dr. Sushma Ekka (PW-6) is the Doctor who had examined the victim. As per her report (Exhibit P/15), the victim was well oriented and her pulse was normal. Her secondary sexual character were at developing stage, and axillary and pubic hair were scanty. On examination of her private part, no injuries were found nor any discharge was found. There was no bleeding or tenderness. She had prepared two vaginal slides and handed over to the Constable for chemical analysis. She opined that no deAnite opinion could be given regarding recent sexual assault/rape. For ascertaining the age, she had referred to Radiologist and Dentist and had also advised for USG for pelvic pathology. 22 The clothes seized from the appellant-Pradeep Yadav and the vaginal slides prepared from the victim were sent to the FSL, Bilaspur for examination. In the FSL report (Exhibit P/29), though semen and human 9 sperms have been found in the underwear of the appellant-Pradeep Yadav, no sperms have been found in the vaginal slides of the victim. 23 The mother, sister and the father of the victim have turned hostile and not supported the case of the prosecution. The victim (PW-1) herself has admitted that there is no other door except the main door of the house from which entrance can be made. On the one hand, the victim stated that the appellants came out from her bathroom when the bathroom is situated inside the house and on the other hand, she stated that she opened the front door on hearing some sound. Both these statements are contradictory. Further, the victim has stated that she sustained injuries on her neck which was clariAed later that there was bruise marks and that there was bleeding from internal parts after commission of rape. However, the said deposition is stands falsiAed by the MLC report where no such thing is reported by the Doctor. There is an animosity between the victim and the family of the appellants as she had lodged a report against one Umesh Yadav who is the relative of appellant-Pradeep Yadav. The victim also admitted that the wife of appellant-Bantu had lodged an FIR against her brother with regard to eve teasing. The victim could not state as to at what time her sister and mother returned home on the date of incident and above all, She has further stated that there is one stair case in the building, which is used for going upstairs and coming downstairs and from the windows, it can be seen as to who is coming and going. The incident is said to have occurred at around 6:00 p.m. and if any such incident would have happened, it could have deAnitely been noticed by any of the neighbour, which is missing in this case. 24 The person Arstly to reach the place of incident after the alleged rape, is the sister-in-law of the victim, namely Niharika Chauhan, whose 10 statement has not been recorded and she has not been included as prosecution witness. 25 In the considered opinion of this Court, the testimony of the victim (PW-1) does not satisfy the parameters for treating her as a sterling witness whose sole testimony can be made the basis for conviction. A sterling witness is one whose statement is of such unimpeachable character, consistent throughout, free from any inArmities, contradictions or improvements, and inspires implicit conAdence. However, in the present case, the deposition of the victim su?ers from material contradictions, lacks natural and consistent conduct, does not And support from medical or forensic evidence, and stands uncorroborated by any independent witness. In view of these deAciencies, this Court is unable to place reliance solely on her testimony to uphold the conviction of the appellants. 26 The deposition of the victim (PW-1) does not inspire conAdence so as to hold that the incident actually occurred on the date and time as stated by the victim. There are no injury marks, no human sperms were found in the vaginal slides and moreover, no injuries have been found on the body of the victim. The deposition made by the victim does not corroborates with the MLC report. The mother, father and sister of the victim have also turned hostile and not supported the case of the prosecution. The presence of inimical relationship between the victim and the appellant’s family is also not denied in this case. Except for the version of the victim, there is no corroborating evidence so as to connect the appellants with the commission of the o?ence in question and as such, this Court is of the view that the appellants deserves to be acquitted of the charges. 11 27 From the above analysis, we are of the opinion that there is no corroborative evidence to the deposition made by the victim (PW-1) and there is no other evidence led by the prosecution to connect the appellants with the o?ence in question. Therefore, it would be unsafe to convict the appellants merely on the basis of deposition made by the victim. As such, the conviction and sentence awarded by the learned trial Court is set aside. The appellants are acquitted of the charges. 28 As a result, the appeal Aled by the appellants-Nanu @ Pradeep Yadav and Bantu @ Rajendra, stands allowed. 29 The appellants are reported to be in jail. They shall be set at liberty forthwith if no longer required in any other criminal case. 30 Keeping in view the provisions of Section 437-A of the Cr.P.C. (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the accused-appellants are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be e?ective for a period of six months along with an undertaking that in the event of Aling of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 31 The trial Court record along with a copy of this judgment be sent back forthwith to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.11.27 19:11:58 +0530